David Boyce

On the morning of May 19, 1990, a housekeeper at the Econo Lodge motel in Newport News, Virginia, discovered the body of 35-year-old Timothy Askew in room 204. He had been stabbed multiple times.

At the time, Askew had been sharing room 235, an efficiency suite, with 19-year-old David Boyce, whom police located at 2 p.m. at a Sizzler’s restaurant where Boyce worked. Boyce was taken to the police department, where he said that on the afternoon of the previous day, he had seen Askew and Askew’s ex-wife at the motel. Boyce claimed that Askew gave him some money he owed him. Boyce said he next saw Askew around 2 or 2:30 a.m. when Askew came into their room and said he had some hash and was going to party with friends.

Boyce was fingerprinted by Officer Patti Montgomery, a detective took a Polaroid photograph of him, and he was released. He was interviewed again on May 22 and repeated his account. On May 24, Boyce’s 20th birthday, he was called back a third time and charged with capital murder and robbery. At that time, photographs were taken of his hands that showed some cuts and bruises.

The prosecution sought the death penalty when Boyce went on trial in Newport City Circuit Court in March 1991. A motel clerk testified that he checked Askew into room 204 around 2 a.m. The clerk made a security walkthrough of the property at 3 a.m. and as he passed room 204, which was silent and dark, he saw a man walking behind him who furtively ducked into a crossway and then headed toward some woods located behind the motel. The clerk testified that the man looked similar to Boyce, though the man he saw had a darker complexion and “at least shoulder length hair, possibly longer.”

Patti Montgomery, the police officer who fingerprinted Boyce, testified that Boyce had “almost shoulder length hair” when she took his fingerprints. She told the jury that when she saw him after his arrest, which was five days after she fingerprinted him, “he had cut his hair again, even shorter.”

Herman Elkins testified that he was in jail on an illegal gun possession charge when Boyce confessed to the murder through jail cell bars. Elkins said that Boyce was on the way back to his cell from taking a shower when he confessed. According to Elkins, Boyce said that he and Askew had been gay lovers and that he killed Askew during a quarrel.

A police evidence technician testified that a scent-tracing dog traced the scent from bloody towels in room 204, where the body was found, to room 235, where Boyce and Askew had both been living.

The jury was shown the photographs of cuts and bruises on Boyce’s hands, taken five days after the crime.

After a two-day trial, the jury convicted Boyce of capital murder and robbery, and sentenced him to two terms of life in prison.

In the late 1990s, Boyce was going through transcripts and he happened to remember that his photograph had been taken on the day he was first questioned by police. He wrote a letter to the Newport News Police requesting a copy of the photo. There was no response.

In 2001, after his conviction was upheld on appeal, Boyce was granted DNA testing of evidence in the case and he mentioned to his lawyers his memory of detectives taking a Polaroid of him. But when the police investigative file was turned over to the lawyers, the photograph was not in the file.

In May 2004, Boyce filed a petition for a writ of actual innocence in the Supreme Court of Virginia based on DNA testing of biological evidence in room 204. The DNA evidence showed the presence of DNA of an unidentified person and none of Boyce’s DNA. In August 2004, Elkins, the jailhouse snitch, telephoned Boyce’s attorney and said he had lied at Boyce’s trial in return for dismissal of the gun possession charge. However, Boyce’s petition was denied.

When the petition was denied, Boyce’s appellate attorney referred the case to the Mid-Atlantic Innocence Project before discontinuing his representation. Lacking the resources to properly litigate Boyce’s claims at that time, the Mid-Atlantic Innocence Project referred the case to an outside law firm which agreed to represent Boyce pro bono.

In 2005, Boyce’s attorneys simultaneously filed state and federal petitions for writs of habeas corpus. In the course of the state proceedings, the prosecution revealed exculpatory evidence that had not been disclosed to Boyce before or at his trial. The evidence included a prosecution report of a telephone call from a member of Askew’s family saying that a man named Robert Rodriguez had told acquaintances that he had “cut up” Askew. The newly disclosed evidence also included the Polaroid photograph of Boyce that was taken by a detective on the day of the murder when he was first questioned. That photograph showed Boyce from the waist up, wearing his Sizzler’s uniform and nametag. His hair was short.

In 2010, a hearing on the state petition was held. Elkins recanted his recantation and asserted that he had testified truthfully at Boyce’s trial. Boyce’s attorneys presented evidence of Elkins’ history of mental illness and evidence that Elkins had originally recanted to prosecutors in 2004, prior to calling Boyce’s attorneys. According to the defense, prosecutors had not only failed to disclose the recantation, but had discouraged Elkins from contacting Boyce’s attorneys. The court ruled that the failure to disclose the photograph had violated Boyce’s constitutional right to a fair trial, but denied the petition. The judge found it was filed too late—the statute of limitations for filing his petition had expired—because Boyce knew about the existence of the photograph but failed to raise it at trial.

In 2011, Boyce turned to the federal habeas petition, which had been put on hold pending the conclusion of the state proceedings. In March 2013, U.S. District Court Judge James R. Spencer granted Boyce’s petition, vacated his conviction and ordered a new trial. Boyce was released in April 2013.

On September 18, 2013, the prosecution dismissed the charges at a hearing presided over by Norfolk Circuit Court Judge Mary Jane Hall, who said she was “familiar with the record in this case,” and that her review of the evidence and the case's record led her to conclude that “the wrong person was prosecuted.”

“I can't give you back the last 23 years, but I can give you back the next 23 years,” Judge Hall told Boyce. “I can sign the order, and I'm doing so at this time.”

In May 2014, Boyce filed a lawsuit against the city of Newport News and the lead detectives in his case seeking $25 million in damages for his wrongful incarceration. The lawsuit was settled in January 2016 for $2 million

About the Registry

The National Registry of Exonerations is a project of the Newkirk Center for Science & Society at University of California Irvine, the University of Michigan Law School and Michigan State University College of Law. It was founded in 2012 in conjunction with the Center on Wrongful Convictions at Northwestern University School of Law. The Registry provides detailed information about every known exoneration in the United States since 1989—cases in which a person was wrongly convicted of a crime and later cleared of all the charges based on new evidence of innocence.

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